RELIGIOUS LIBERTY NEWSFLASH! - May 25, 2005

[Stan]

Pacific Union Conference of Seventh-day Adventists

Department of Public Affairs and Religious Liberty

May 25, 2005

RELIGIOUS LIBERTY NEWSFLASH!

Lawyer’s Weekly Article on Religious Discrimination in

Employment

This week’s issue of the widely read journal, Lawyer’s

Weekly, features the following article on religious

discrimination, with frequent quotes of Alan J. Reinach,

director of Public Affairs & Religious Liberty for the

Pacific Union. Please reference this article in a new round

of letters, phone calls and e.mails to Congress in support

of the Workplace Religious Freedom Act, citing the national

attention this issue is gaining, and the importance of

strengthening laws remedying religious discrimination.

Religious Discrimination Claims Are On The Rise

By Amy Johnson Conner

The number of religious discrimination claims filed with

the Equal Employment Opportunity Commission continues to

increase.

Since 2001, the number of claims filed with the federal

agency has jumped 16 percent -totaling 2,466 in 2004.

Lawyers are also seeing more suits.

"I've been doing this for 12 years and I didn't have a

single religious discrimination case until 2001," said Bret

A. Cohen, an employment litigator at Mintz Levin in Boston.

But now "I'm seeing a lot of claims."

Chicago attorney Deanne Snedeker Medina, who practices with

the firm Maduff, Medina & Maduff, has also seen an increase

in claims post-Sept. 11, many by plaintiffs of Middle

Eastern descent.

The law requires employers to make accommodations as long

as this does not create an undue hardship. However, this

can put companies in the difficult position of attempting

to accommodate Employee A without stepping on the rights of

Employee B - for example, if the former wants to express

his or her faith and the latter is offended, or if Employee

A asks to leave work early to celebrate the Sabbath,

forcing Employee B to work late.

Employment lawyers say that some accommodations are easy to

make. But if an employer thinks that a requested

accommodation would create an undue hardship, there are

steps that can be taken to help avoid litigation, or at

least bolster the case in the event it ends up in front of

a jury.

Common Claims

The most common claims involve requested accommodations for

religious holidays and exceptions from appearance rules,

such as a requirement that men be clean-shaven or

prohibitions on wearing head coverings for women.

Westlake Village, Calif., attorney Alan J. Reinach,

president of the Seventh-Day Adventist Church State

Council, handles approximately 150 cases per year for

church members and is carbon-copied on countless more

letters to employers seeking scheduling accommodations for

members, who observe the Sabbath from sundown Friday until

sundown Saturday.

"That's the issue we get involved with over and over and

over again," he said.

Another category of claims concerns employees who claim

they are being harassed because of their religion.

Cohen is currently handling a case in which employees are

accused of making disparaging comments to a Middle Eastern

co-worker, including nicknaming him "the Taliban," and

telling him, "I don't want your camel tied up next to my

car."

A third species of claim involves employees who insist on

their right to promote religion in the office.

In a recent example, the 9th Circuit held that Hewlett

Packard could not be sued for religious discrimination by

an employee who was fired for posting anti-gay Biblical

passages in his cubicle. The employee, a devout Christian,

put up the verses to protest corporate diversity posters

that included a picture of a gay employee. (Peterson v.

Hewlett-Packard Co., 358 F.3d 599 (2004).)

Another case involved a woman who was fired for writing

letters to company personnel at home accusing them of being

sinners and encouraging them to give their lives over to

Jesus Christ. The employee was upset co-workers had made

promises to a customer about the delivery of a product that

she was certain the company could not keep. The 4th Circuit

upheld the termination. (Chalmers v. Tulon Co. of Richmond,

101 F.3d 1012 (1996.)

Proselytizing in the workplace presents "the intersection

between employees who like to practice their religion and

other employees' rights to work in an environment free from

religious practice or coercion," said Ann Kiernan, an

attorney and trainer with Fair Measures, a provider of

management training headquartered in Santa Cruz, Calif.

What's clear, said lawyers, is that the promotion of

religion does not have to be accommodated if it reaches the

level of harassment.

"If complaints come in about somebody proselytizing, then

management needs to talk to that person and say, 'Look, you

have every right to believe and the right to talk about it,

but if your talking about it becomes unwanted and offensive

to co-workers, you have to stop,'" said Reinach.

"Religious discrimination law applies to those who believe

and those who don't believe," added Kiernan. "Agnostics and

atheists are also protected."

Lack Of Sensitivity?

Some lawyers suggest that these claims are on the rise

because employers and managers aren't as sensitive to the

need to make religious accommodations as they are in other

areas.

"If you have a disability and you're asking for an

accommodation, then I think employers are more [likely] to

accommodate," said Medina. "There doesn't seem to be as big

a deal if you are in a wheelchair and need a certain kind

of desk" as there is if an employee needs to leave early,

have a break scheduled at a certain time, or take specific

days off to observe religious occasions.

There can also be a perception on the employer's part that

accommodating one employee will open the floodgates to

accommodation requests from every employee, according to

Reinach.

He noted that some employers have the attitude that they're

the boss and they'll tell employees when to work - not the

other way around.

In addition, even though these claims are growing, their

infrequency in comparison to race or sex discrimination

suits may help keep them off many employers' radar.

Reinach recalled the deposition of a human resources

manager for which he printed and pointed out the religious

discrimination policy in the employee manual. She still

spent a full five minutes leafing through the manual and

eventually testified that she did not know what the

company's policy was.

Accommodations Can Be Easy

In many cases, giving an employee a requested accommodation

for a sincerely held religious belief is easy and costless

- and if that's the case, the law requires that it be

granted.

For example, breaks and lunch hours for Muslim employees

can be scheduled to coincide with their prayer times, three

of the five of which occur during the regular work day.

Companies are often able to find a private office or other

room in which employees can unroll their carpets and pray

while kneeling, noted Kiernan.

Or, if a Christian employee wants to wear a cross and the

employer fears that may be distracting, perhaps it could be

worn inside a blouse or shirt, Reinach suggested.

How can employers arrive at these solutions? By using an

interactive process, just as they would in determining the

type of accommodation needed by a disabled employee. First,

an employer should ask what type of religious accommodation

is needed and how often, and also ask the employee whether

it's possible to provide additional information from the

religious organization about the need for accommodation,

Cohen said.

The key, said Medina, is to engage in the process - the

employer needs to present some options and an open dialogue

between employer and employee needs to take place.

What employers can't do is simply put the burden on

employees to find their own accommodations. Reinach once

worked with an airline employee who needed a religious

accommodation, and management simply gave the employee a

copy of the collective bargaining agreement and said to

work within the system.

"Frankly, that's not good enough," he said.

When The Answer Is No

If the employer and employee can't reach an agreement, the

employer needs to decide if it is willing to refuse an

accommodation and risk litigation.

"Sometimes the client says 'yes,' because it's going to

impact their business or create an undue hardship," Cohen

said.

Even if the religious belief is sincerely held, a company

is not required to accommodate an employee if it creates an

undue hardship. The key to protecting the employer from

litigation is to carefully document the steps taken to

reach that decision.

"If, for whatever reason, you really think that

accommodation is going to be problematic, then you need to

not just say so in a general sense, you need to carefully

document why you think it would be problematic," Reinach

said. He said that while employers know to document a

legitimate undue hardship under the ADA, they tend not to

do the same for religious accommodations.

"Justification after the fact is dangerous for employers,"

cautioned Reinach. "They don't do well when they allege

what the hardships would have been. ... It's the

hypothetical hardships that the courts are skeptical of."

A determination of undue hardship can result in some

employees being accommodated while others are not. For

example, an assembly line may be able to cover two or three

employees taking off during certain hours of the day for

religious observance, but if there are many more, it could

become impossible, Reinach said.

"The case law says that's OK," noted Medina. "But you can't

come in with the first person and say, 'If we do it for you

we have to do it for everybody.' The employer has to show

undue hardship."

A complication that can sometimes arise is the existence of

a collective bargaining agreement, said Cohen, because

"then you have to deal with how if affects seniority

issues."

Companies may be concerned about getting hit with

grievances from senior employees who do not need an

accommodation but object to what they see as favorable

treatment, or treatment that violates seniority rules.

Kiernan also emphasized the importance of keeping the human

resources department in the loop, "to make sure you're

treating people consistently."

What To Do If An Employee Complains

If a claim is filed with the human resources department,

EEOC or state discrimination agency, Cohen suggests

conducting a thorough investigation of the incidents that

led to it. Talk to the employee who made the claim, anyone

against whom allegations are made and other employees who

may have been witnesses to, but not part of, the situation.

In addition, "I always counsel employers to make sure that

they tell employees not to retaliate against the

complaining employee," because there has been an increase

in the number of retaliation claims that courts have

allowed to go forward even though the underlying claim of

discrimination has been dismissed for lack of evidence, he

said.

If enough is at stake, Cohen hires a third party to conduct

an independent investigation. This is a good way to

distance the company from the decision-making, and if the

case goes to trial, the investigator can be called to

testify in an effort to show the employer did as much as

possible to remedy the situation.

"Companies are not FBI-trained. They can do their best, but

even companies with sophisticated HR departments may not

get it right," he said. "By hiring this third party to come

in, with my direction helping in the background, they're

able to come to a conclusion that we as a company can rely

on."

If there is truth to the allegation, the employer should

take disciplinary action and "confirm that in writing,

letting the accuser know what occurred," Cohen said.

To prevent problems in the first place, employers should

make sure any discrimination or harassment training covers

religious discrimination as well. Cohen advises hiring

third parties here too, because if a situation arises after

the training they can be called to testify about what was

covered and who was present.

Workplace Religious Freedom Act

Leaders from four dozen churches are attempting again this

year to win passage of the Workplace Religious Freedom Act,

which would redefine reasonable accommodation and undue

hardship.

The same legislation was introduced in the last session of

Congress, but died. The Senate version has been referred to

the Committee on Health, Education, Labor, and Pensions,

where it is not currently scheduled for a hearing. The

House version has been referred to the Committee on

Education and the Workforce and also awaits a hearing.

One of the act's main provisions would define "undue

hardship" as an accommodation requiring "significant

difficulty or expense," as is required under the ADA. To

determine whether an accommodation requires significant

difficulty or expense, the cost of the accommodation and

the financial resources and size of the employer would need

to be considered, among other things.

The Senate bill is S. 677, sponsored by Sen. Rick Santorum,

R-Penn. The House bill is H.R. 1445, sponsored by Rep. Mark

Souder, R-Ind.

You can read or print the text of both bills in the

"Important Documents" section of Lawyers Weekly USA's

website:

http://www.lawyersweeklyusa.com/subscriber/treas.cfm

Questions or comments can be directed to the editor at:

[]susan.bocamazo@lawyersweekly.com[/]

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These religious liberty newsflashes and legislative e.lerts

are published by the Pacific Union Conference of

Seventh-day Adventists, Department of Public Affairs &

Religious Liberty, www.churchstate.org.

For assistance with a religious liberty problem:

Alan J. Reinach, Esq., []ajreinach@verizon.net;[/] 805-413-7396

Michael Peabody, Esq. []mpeabody@puconline.org;[/] 916-446-2552

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